The George Washington University Law School

Constitutional Law II Outline

Professor Peter J. Smith

The George Washington University Law School

Fall 2012

I.  Introduction

a.  Individual Rights and the States

i.  Natural Law vs. Positive Law- body of laws that are universal, unchangeable, eternal or affirmatively enacted laws define the process

ii. Incorporation

1.  Due Process Clause protects only those rights that are “implicit in the concept of ordered liberty,” essential to “a fair and enlightened system of justice,” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

2. 

II.  Fundamental Rights

a.  Introduction

i.  Analysis under the Due Process Clause-

1.  Does the challenged action interfere with a fundamental right?

a.  Right of Privacy?

b.  Right Embraced in the court’s precedents?

c.  Importance of the Level of Generality

i.  Justice Steven’s View - The liberty safeguarded by the 14th is not merely preservative but is a dynamic concept – define too broadly and it will embrace all types of rights

ii. Justice Scalia’s View- Rigid Historical test – Would constrain us to the prejudiced and stagnant view of the past

2.  What form of scrutiny do we use?

a.  Strict Scrutiny: Government action must be narrowly tailored to advance a compelling government interest

b.  Economic Liberty

i.  Substantive Due Process

1.  Procedural due process”- refers to the governments to provide adequate procedural protections before depriving a person of some important interest

2.  “Substantive due process”- concerns the extent to which the “liberty” mentioned in the Due Process Clauses is protects from government deprivation, wholly aside from the fairness of the procedures.

ii. Freedom to Contract

1.  Due Process protects liberty of the individual to contract for labor – Lochner v. New York

2.  The Court has since held that government regulation of social and economic matters is generally subject only to review for rationality – West Coast Hotel Co. v. Parrish

3.  Rational Basis Review: Legislation is presumed to be valid and will be sustained if the regulation s “rationally related to a legitimate government interest”

a.  “Legitimate Governmental Interest”- Courts will generally not seek to determine the legislature’s actual objective, but instead will judge in light of possible objectives

i.  E.g. Payment of minimum wage to women and minors – West Coast Hotel Co. v. Parrish

ii. Statute prohibited any person not licensed as an optometrist or ophthalmologist from fitting, duplicating, or replacing lenses without a written prescription - Williamson v. Lee Optical Co.

b.  “Reasonable Related”- “the law need not be in every respect logically consistent with its aims to be constitutional

c.  Contraception

i.  Prelude:

1.  Meyer v. Nebraska (1923)-

a.  The Court stated that the liberty protected by the dues process clause “denotes not merely freedom from bodily restraint but also the right of the individual

i.  to contract,

ii. to engage in any of the common occupations of life,

iii.  to acquire useful knowledge,

iv.  to marry, establish a home, and bring up children,

v. to worship God according to the dictates of his own conscience, and

vi.  generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

ii. Liberty of parents and guardians to direct the upbringing and education of children under their control – Struck down mandatory school attendance - Pierce v. Society of the Sisters

iii.  Government cannot use sterilization as a punishment for a crime at least when persons who commit similar crimes are exempt from that punishment - Skinner v. Oklahoma

iv.  Government cannot prohibit the use of contraceptives by married couples – Griswold v. Connecticut

1.  Court invalidated law that permitted distribution of contraceptives only to married couples under the Equal Protection Clause – Einstad v. Baird

2.  Right of privacy – right of the individual to married or single to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child

v. Rights Protected by the Due Process Clause:

1.  “Penumbras” Justice Douglas’s View

a.  Rights in the Bill of Rights are protected along with penumbras of those rights

2.  Due Process: Justice Harlan’s View – Modern View

a.  All fundamental rights (including some of the Bill of Rights)

3.  Due Process and the Role of the 9th Amend: Justice Goldberg’s View

a.  Rights in the Bill of Rights only to protect against uncontrolled judicial lawmaking

4.  No Substantive Rights

a.  Privileges and Immunities Clause is the logical source of fundamental rights but the Slaughterhouse cases foreclosed that interpretation

d.  Abortion

i.  Roe v. Wade (1973)

1.  Government may not prohibit woman from choosing to terminate a pregnancy before viability, and the government may not impose an undue burden on that right

2.  The Trimester Framework- the right of a woman to have an abortion depends on timing:

a.  First trimester- state cannot regulate abortion

b.  Second trimester- state can regulate abortion in ways that are reasonably related to maternal health

c.  Third trimester- state can prohibit abortion except where necessary to preserve the life or health of the mother

ii. Planned Parenthood of Southeastern Penn. v. Casey (1992)

1.  Abandons Trimester Framework as a rigid prohibition on all previabilty regulation aimed at the protection of fetal life

a.  Importance of stare decisis

2.  Undue Burden Test (Plurality Opinion): Any regulation that has the purpose of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right

a.  Waiting Period - No undue burden

1.  Except in emergency circumstances, requiring that the woman be informed of the availability of information on fetal development and assistance available is a reasonable measure to ensure an informed choice

i.  Not a substantial obstacle despite the fact that it increases cost and risk

b.  Spousal Notification – Undue burden

i.  The husband’s interest in the life of the child of his wife is carrying does not permit the state to empower him with this troubling degree of authority

c.  Parental Notification – No undue burden

i.  Reaffirm precedent that allow this type of notification provided that there is an adequate judicial bypass procedure

d.  Facility Reports – No undue burden

i.  Although may increase cost of abortion not a substantial obstacle but could be if there is further showing

e.  “Partial-Birth Abortion” Ban – No undue burden - Gonzalez v. Carhart (2007)

i.  Does not on its face impose an undue burden where other abortion procedures are available

ii. Statute cannot be applied in situations wherein the woman’s health would be endangered.

iii.  State has wide discretion to pass legislation in areas where there is medical and scientific uncertainty

e.  Marriage and Family

i.  Statute that prevents marriages between persons solely on the basis of racial classifications violates the Due Process Clause - Loving v. Virginia (1967)

ii. Statute requiring court’s permission for a marriage license in cases where the person was obligated to pay child support is invalid - Zablocki v. Redhail (1978)

iii.  Due Process Clause Protection of Other Familial Relationships

1.  Definition of a Family

a.  City ordinance that used a narrow definition of a family to restrict who could live together was unconstitutional as applied to a grandmother - Moore v. City of East Cleveland (1977),

b.  Regulations that intrude on a choices concerning family living arrangements warrant heightened review

2.  Child-Rearing Decisions

a.  Troxel v. Granville (2000) the court reiterated that parents have fundamental right to make decisions regarding the care, custody, and control of their children

b.  Statute that allowed the court to give visitation rights to anyone if it was found to be in the best interests of the child was unconstitutional as applied (a mother who sought to limit the extent to which paternal grandparents could visit he children after death of father)

3.  Presumption of Parenthood

a.  Refused to invalidate a CA claw that established a presumption, which could only rebutted under very limited circumstances, that a child born to a married woman is the child of the marriage - Michael H v. Gerald D. (1989)

f.  Sexuality

i.  Lawrence v. Texas (2003)

1.  Government cannot make it a crime to engage in private, consensual sexual conduct, including homosexual sex

2.  Powerful affirmation of a right to privacy

3.  Sexual activity is a fundamental aspect of personhood and that it is entitled to protection

4.  Present case does not involve minors, relationships where consent is hard to come by or public conduct or prostitution

5.  The promotion of sexual morality is not a proper use of the government

6.  Not clear on level of scrutiny

III.  Equal Protection

a.  Introduction and Framework

i.  Distinction and Classifications

1.  “No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

2.  Any case challenging a government classification hinges on the nature of the classification, the government interest and any relationship between the two

3.  “Level of Scrutiny” that the court applies

a.  Strict Scrutiny- “narrowly tailored” to advance a “compelling government interest”

b.  Intermediate Scrutiny- must be “substantially related” to an “important” government interest

c.  Rational-Basis Test- “Rationally related” to a “legitimate government interest”

4.  Carolene Footnote - United States v. Carolene (1938)- judicial intervention might be warranted, among other times to protect “discrete and insular minorities” from the political process

a.  Strict Scrutiny when race or national origin

b.  Intermediate Scrutiny when gender or marital status of one’s parents

ii. To Whom Does the Obligation of Equal Protection Apply?

1.  Reverse Incorporation – Equal Protection Clause is applied to the federal government through the 5th Amendment - Bolling v. Sharpe (1954) (Segregation in DC public schools)

iii.  Rationality Review

1.  Under-Inclusiveness in Regulation – does not mean that the regulation is not rationally related

a.  Prohibited the operation of “advertising vehicle--vehicles that serves as moving billboards—but permitted the use of business notices upon delivery vehicles - Railway Express Agency v. People of State of New York (1949)

2.  Over- Inclusiveness in Regulation – does not mean that the regulation is not rationally related

a.  New York TA enforces a general policy against employing persons who use narcotic drugs, including methadone maintenance - New York City Transit Authority v. Beazer (1979)

3.  Legitimate Government Interests – Government has to identify some plausible legitimate interest even if it was not the actual one

b.  Facial Discrimination on the Basis of Race

i.  Facial Discrimination Against Minorities

1.  The 13th Amendment outlawed slavery and the 14th Amendment overruled Dred Scott by making all persons born or naturalized in the United States are citizens of the United States and the state where they are from

2.  Equal Protection Clause does not refer explicitly to race, it applies to any person within the jurisdiction of the state

ii. Excluding blacks from jury service solely on the basis of face violates the Equal Protection Clause - Strauder v. West Virginia (1879)

1.  Does not include excluding people because or wealth, gender, age, education

iii.  National Origin - Restrictions on the civil rights of single racial group are immediately suspect and courts must use the most rigid scrutiny

1.  Within the war power of Congress and the Executive to exclude those of Japanese Ancestry from the West Coast war area - Korematsu v. United States (1944)

2.  Dissenting – Justice Murphy – Test should be whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger

c.  Racial Discrimination in Purpose or Effect

i.  Discriminatory application of an otherwise facially neutral law triggers heightened scrutiny under the Equal Protection Clause - Yick Wo v. Hopkins (laundries made of wood to petition for a permit)

1.  Ordinance conferred authority that was so unbridled as to raise a serious risk of arbitrary application

ii. Discriminatory Effect or Purpose

1.  Gomillion v. Lightfoot (1960)Sstatute would have altered the shape of the city to remove all but a few of black voters while not removing a single white voter or resident

a.  Court said that because the statute has a racially discriminatory purpose, it triggered heightened scrutiny, even though it was race neutral on its face

2.  Discriminatory Effect

a.  A law establishing a racially neutral qualification for employment that has a racially disproportionate impact does not violate the Equal Protection Clause - Washington v. Davis (1976)

b.  Discriminatory effect without discriminatory purpose is insufficient to show racial classification.

3.  Proving Discriminatory Purpose

a.  Difficulty of Proving Discriminatory purpose

i.  A non-discriminatory purpose can be articulated for almost any law

ii. Legislators who voted for the law may have widely varying motives

iii.  Legislators with discriminatory animus are unlikely to have openly declared it

b.  The impact of the action may provide a good starting point

c.  Sometimes a clear pattern, unexplainable on grounds other than race emerges

d.  Historical background is one evidentiary source

i.  Specific sequence of events leading up to the challenged decision

ii. Departures from the normal procedural sequence

iii.  Legislative or administrative history

e.  Hunter v. Underwood (1985) the Court invalidated a provision of the Alabama Constitution that disenfranchised persons convicted of crimes of moral turpitude and the provision has disenfranchised about ten times as many blacks as whites

f.  Village of Arlington Heights v. Metro. Housing Development Corp (1977)- Court considered a challenge by a predominantly white Chicago suburb to deny a request by a developer to build townhouses that would be accessible to lower income tenants

1.  Burden of Proof: Even if the plaintiff offered evidence that the government was motivated at least in part by a discriminatory purpose,